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No 11 (2023)
- Year: 2023
- Published: 15.11.2023
- Articles: 10
- URL: https://ogarev-online.ru/2072-909X/issue/view/25674
Theoretical and historical legal studies
The institute of reconciliation in Russian law of the XI–XVI сenturies
Abstract
The object of the study is pre-trial and judicial conciliation procedures in conflicts between subjects of Russian monarchs. The subject of the study is the legal norms regulating these procedures, their genesis and development since the formation of the Old Russian state, contained in the legislation of individual principalities and the Moscow State. The need to write this article is caused both by the general vector of development of the science of the history of state and law of Russia, and by not quite correct ideas about the history of the institute of reconciliation among domestic researchers, especially specialists in the field of criminal law and procedure. The purpose of this work is to restore the scientific nature of the study of the genesis of the institute of reconciliation in Russian law. Particular attention is paid to the involvement of judicial practice illustrating the widespread use of conciliation procedures, including in the commission of serious crimes. Comparative legal analysis allowed us to show the development of the institution, the persistent desire of the legislator to reconcile the parties, including in the commission of serious crimes that caused significant property damage. The conducted research allowed us to conclude that reconciliation between the conflicting parties, carried out since ancient times according to custom, has already been legally regulated in the Moscow Kingdom in three directions: 1) in a pre-trial order; 2) after applying to the court, but before the start of the consideration and 3) after the verdict, before the judicial duel.
5-10
Thinkers of Russia of the XV–XVI centuries about justice
Abstract
At the end of the XV–XVI centuries, Russian religious and secular thinkers discussed a number of issues related to the formation of a sovereign state, the formation of a permanent army subordinate to the head of state, the organization of power, administration and judicial proceedings in the country. The topic of righteous judgment, discussed back in the XI–XIII centuries, was not only in demand, but also became the focus of attention of prominent thinkers and publicists of that time. The authors analyze the works of Russian philosophers who defined the foundations of the doctrine of justice in Russia of the late Middle Ages and have not lost their significance in the modern period.
The scientific article completes the cycle “Medieval Russian thinkers about justice”, which includes articles besides it: “The first words about justice in Russia (The Election of 1076 and ‘Bee’)” and “Russian thinkers of the XI–XIII centuries about justice”. Knowledge of the past is important for the future and allows not to repeat its mistakes, and therefore the problem chosen for research remains relevant and needs further study.
11-25
Problems of evaluating the effectiveness of the links of the justice mechanism
Abstract
The purpose of the article is to show that the evaluation of the effectiveness of the justice mechanism, any of its links and its as a whole, cannot be simple. Moreover, an objective assessment is hardly possible, at least at the present stage of development of legislation, judicial practice and legal science. Awareness of such a situation should eliminate the temptation to solve the problem in simple ways, especially on the basis of a subjective understanding of the criteria for the effectiveness of the justice mechanism. At the same time, it is noted that an objective assessment of the effectiveness of the links of the justice mechanism is vital not only within the judiciary, but also to Russian society as a whole.
A brief review of scientific sources on the problem under consideration is carried out.
The article considers three levels of problems of evaluating the effectiveness of the justice mechanism: 1) directly the judicial activity of courts and judges; 2) clarification of the governing bodies of the judiciary on judicial activities; 3) the work of bodies and other structures that ensure the judicial activity of courts and judges, both direct and indirect. In the author’s understanding, the problems of objective assessment of the work of judges, judicial structures and judicial boards, as well as courts at each of these levels are called.
26-37
Regulation of actual digital legal relationships
Abstract
Social development is characterized by a constant expansion of the boundaries of actual legal relations that arise between subjects of law. One of such phenomena of our time is digitalization, which has now become widespread in almost all areas of the life of society and the state.
The object of this study are issues related to the regulation of actual digital legal relations. The study was carried out on the basis of the methods of logical and legal analysis. With their help, some regularities in the development of actual digital legal relations were identified, as well as problematic issues related to their legal and individual regulation.
The study identified four main stages in the development of actual digital legal relations, analyzed the key points in the emergence and development of the digital space, as well as the legal and individual regulators inherent in each of these stages. Special attention is paid to the fourth (modern) stage of digitalization, which, like the previous ones, is characterized by the fact that the regulators of actual digital legal relations are mainly individual regulators, which in modern conditions is no longer just unacceptable, but also poses a certain threat to the interests of the state and society.
Based on the results of the study, the following conclusions were drawn: to contain the threats and challenges that are introduced by the modern digital space, both fundamental international and national legal regulators are needed. A special role here should be assigned to national legal regulation, which should be aimed at streamlining the actual digital legal relations that are emerging in the Russian segment of the global Internet. A consistent transition from individual regulators to legal ones, while maintaining the rules of conduct already developed in the digital space, will not only streamline the process of interaction in the network, but also achieve the much-needed balance between the processes of change and development of actual legal relations taking place in the digital sphere and their legal regulation. On this path, the principles of law, which act as legal regulators along with the rules of law, are of great importance, since they allow law enforcement in the conditions of existing gaps, primarily in national legal acts.
38-49
Private law (civil law) studies
Protection of the rights of the owner when pledging property
Abstract
Property turnover is a rather complex phenomenon, for which actions related to the violation of rights and legal interests, the abuse of the right are not an exception. In particular, situations arise when property is pledged by an unauthorized person, which creates a situation in which the interests of the owner and the pledgee are opposed. The complexity of resolving these disputes is due to the fact that the legislator uses rather abstract categories that do not have a clear content and are interpreted ambiguously in science and law enforcement practice.
The purpose of the article is to form a theoretically substantiated approach to resolving disputes related to the protection of the owner’s rights when property is pledged by an unauthorized person. Achieving the purpose of the article is carried out by solving the following tasks: determining the signs indicating the disposal of property from the owner»s possession against his will, determining the approach in assessing the due diligence of the pledgee when concluding a pledge agreement.
The article was prepared using general scientific methods (systemic, logical) and special legal methods (comparative legal, formal legal).
The author comes to the conclusion that when property is pledged by an unauthorized person, first of all, the circumstances related to the disposal of the subject of pledge from the owner»s possession are subject to assessment, in the event that the property has retired against the will of the owner, the pledge is terminated, if the property has retired due to will of the owner, then due diligence on the part of the pledgee is subject to assessment, and depending on this fact, the issue of maintaining the pledge is decided. When assessing due diligence in relation to citizens, the author proposes to adhere to a single standard, while for business entities it should be differentiated depending on the field of activity, i. e. for an entity carrying out business activities in a certain area, an increased standard of due diligence is assumed if the assessment of due diligence is related to the activities carried out.
50-60
Responsibility of controlling persons and the constitutional basis for the protection of property rights: Search for a balance of interests
Abstract
The issue of the extraordinary nature of the responsibility of controlling persons in corporate relations has not been resolved at the legislative level. In the scientific literature, this issue is actively discussed, but at the legislative level, everything has remained unchanged.
The purpose was to consider the provisions of the current legislation on the liability of controlling persons in corporate relations and their relationship with the constitutional foundations for the protection of rights. The paper analyzes the current legislation and judicial practice of applying the provisions on subsidiary liability of controlling persons in the field of corporate relations in cases of insolvency (bankruptcy). Attention is drawn to the fact that bringing the persons controlling the debtor to subsidiary liability is an exclusive mechanism for restoring the violated rights of creditors, which should be reflected in the current legislation.
Methods: analysis, synthesis and comparative law.
The obtained conclusions are of scientific novelty and practical significance, since they contribute to the improvement of the norms of civil legislation and the development of the science of civil law.
61-69
Criminal law studies
Replacing the unserved part of the punishment with a milder type of punishment: the practice of application and ways to improve
Abstract
Replacing the unserved part of the sentence with a milder type of punishment as a type of early release from further serving a sentence is relevant in the context of the humanization of domestic criminal and penitentiary policy, as well as in demand by modern judicial practice. This institution performs a number of important tasks to correct and stimulate the law-abiding behavior of convicts, which causes interest in the identified problems of law enforcement of its norms and the search for ways to solve them.
The article uses the results of a sociological study conducted by the author from January to May 2023.
The aim of the work is to study the practice of applying the replacement of the unserved part of the punishment with a milder type of punishment and to determine ways to improve it.
The methodological basis of the study was the empirical method, the statistical method, the comparative legal method, the method of interpretation of legal norms, the methods of formal and dialectical logic.
Based on the analysis of scientific literature, the doctrinal positions of scientists, the current regulatory framework, the criminal legislation of foreign countries, statistical data, materials of judicial practice, the results of a sociological study conducted by the author, specific ways are proposed to improve the replacement of the unserved part of the punishment with a milder type of punishment, including additions and amendments to Art. 80 of the Criminal Code of the Russian Federation.
70-84
On the subject of crimes against military service (Chapter 33 of the Criminal Code of the Russian Federation)
Abstract
The modern criminal law defines that the subjects of crimes against military service are military personnel undergoing military service on conscription or under contract, as well as citizens who are in reserve during their military training. The signs characterizing these categories of persons are determined by federal laws, general military charters and departmental regulatory legal acts. In accordance with the latter, military personnel and citizens who are in reserve, during their military training, perform the duties of military service, are in the sphere of military-service relations and can be brought to criminal responsibility under articles of Chapter 33 of the Criminal Code of the Russian Federation. Along with this, Federal Law No. 53-FZ of March 28, 1998 “On Military Duty and Military Service” (paragraph 2 of Article 1) defines that the forms of implementation of the constitutional duty to protect the Fatherland are military service during mobilization, martial law and in wartime.
Article 22.1 of Federal Law No. 61-FZ of 31.05.1996 “On Defense” provides for the possibility of citizens’ participation in volunteer formations performing tasks in the field of defense. In cases and in accordance with the procedure provided for by federal laws and other regulatory legal acts of the Russian Federation, the status of military personnel may be extended to the above-mentioned persons. Consequently, if there are grounds, they can also be brought to criminal responsibility for committing crimes against military service.
Taking into account these circumstances, recommendations are proposed to improve the current version of Part 1 of Article 331 of the Criminal Code of the Russian Federation.
85-92
Violations committed by participants in criminal proceedings during jury trials revealed by courts of cassation of general jurisdiction
Abstract
The article provides an overview of violations that serve as grounds for reversal of verdicts based on a jury verdict in courts of appeal, as well as the problems arising in judicial practice in identifying violations that are grounds for reversal of a verdict. The presented analysis of court practice is accompanied by examples which reflect the difficulties in the application by the courts of the relevant legal norms.
93-103
Problems of initiation and consideration of criminal cases of private
Abstract
The article examines the procedure and problems of initiating and considering criminal cases of private prosecution in accordance with the provisions of the Code of Criminal Procedure of the Russian Federation. The specific proceedings on cases of private prosecution are disclosed. Attention is drawn to the fact that private prosecution is such a kind of accusation in criminal procedure law, when criminal prosecution is initiated not on behalf of the state, in the actual absence of a preliminary investigation or inquiry, but on the complaint of the victim or his legal representative, filed directly with the justice of the peace. It reflects the problems of resolving numerous issues related to the initiation and consideration of criminal cases of private prosecution, as well as issues of ensuring the rights of citizens and observing the principle of competitiveness of the parties when considering cases of this category by a justice of the peace.
104-111